The Case for Writing International Law into the U.S. Code

In recent years, the U.S. judiciary has taken steps to limit the role played by international law in the U.S. legal system. This Article seeks to explain this retreat and to identify ways by which it may be reversed. It argues first that the present judicial retreat from international law is attributable to two causes: judicial attitudes and judicial inexperience. Many judges have expressed some degree of ambivalence—occasionally rising to the level of hostility—about relying upon international law to provide a rule of decision. At the same time, many judges are largely unfamiliar with an ever-expanding array of international legal sources and methods. This Article contends that the end result of this combination of attitudes and inexperience is a pronounced reluctance among U.S. judges to give direct effect to certain types of international law. To date, many international legal scholars have responded to these developments by attempting to persuade the judiciary to rethink its basic approach to international law. This Article argues that a more promising approach would be to seek to persuade the other two branches of the federal government to enact domestic statutes that incorporate various international law rules. These statutory enactments would, among other things, enable the courts to ignore many of the doctrinal impediments that currently make it difficult for individuals to rely directly on international law as a source of rights. They would have a positive impact on the attitudes of skeptical judges. And they would help to alleviate the problem of judicial inexperience. With these goals in mind, the Article offers a number of practical suggestions as to how to draft statutes that incorporate international law so as to maximize the likelihood that such statutes—and the international law rules incorporated there-in—will be given their full effect by U.S. courts

Business Courts and Interstate Competition

Over the past two decades, specialized trial courts that hear business disputes primarily or exclusively have been established in nineteen states. To explain the recent surge of interest in these courts, policymakers and scholars alike have cited the process of interstate competition. Specifically, these commentators have argued that business courts serve, among other purposes, to attract out-of-state companies to expand their business, reincorporate, or litigate disputes in the jurisdiction that created the business court. This Article critically evaluates each of these theories. It argues first that business courts do not serve to attract companies from other states because business expansion decisions in the United States are rarely driven by the high quality of the courts in a particular jurisdiction. It next argues that business courts are unlikely to attract incorporation business because their core attributes are such that they are unlikely to compete successfully with the Delaware Court of Chancery. The Article goes on to argue that while the creation of a business court may in some cases serve to divert litigation business to local lawyers, the opportunities for diversion are relatively limited. The Article then draws upon these insights to offer a number of suggestions as to how future business courts should be designed. It suggests that states seeking to attract technology companies should think twice before creating a business and technology court. It notes that major institutional reforms will be required if states wish to use business courts to attract incorporation business away from Delaware. It also identifies additional steps that states might take to more effectively attract litigation business. The Article concludes by evaluating the viability of several non-competition-based rationales for establishing business courts

Altering Rules, Cumulative Voting, and Venture Capital

Legal scholars have long debated the proper balance betweenmandatory and default rules in corporate law. One group — the contractarians — maintain that corporatelaw should function as an off-the-rack set of default rules that approximate, as much as possible,the rules that the transacting parties would have agreed to if bargaining were costless. The contractarians are generally skeptical of mandatory rules because they interfere with the ability of the parties to decide for themselves how to organize their economic relationships. Another group of scholars—the anti - contractarians — have argued that corporate law should seek to achieve certain regulatory objectives separate and apart from the goal of private wealth maximization. In order to achieve these objectives, such as the protection of uninformed investors, these scholars argue that it is necessary that corporate law contain some mandatory rules that cannot bealtered by the transacting parties

Short History of the Choice-of-Law Clause

In the field of conflict of laws, private actors are generally granted the power to choose the law to govern their contracts. This is the doctrine of party autonomy. In recent years, this doctrine has been the subject of several excellent histories that draw upon judicial opinions, scholarly writings, and legislative enactments to chronicle changing attitudes toward party autonomy over time. A moment\u27s reflection, however, reveals that judges, scholars, and legislatures are not the most important actors in this story. The true protagonists are the contracting parties who write choice-of-law clauses into their agreements, without which there would be no need for any doctrine of party autonomy. These drafters and their creations are, however, almost entirely absent from the existing histories. This Article seeks to remedy this deficit. It provides answers to certain basic questions about choice-of-law clauses that cannot be found in the existing literature. When did they first appear? Have they always been popular? Has the manner in which they are drafted changed over time? It describes how these provisions were first used in the years immediately after the Civil War by companies operating in a small number of industries. It shows how they slowly found their way into a growing number of agreements in the early twentieth century before enjoying a breakthrough moment in the early 1960s. And it recounts how contract drafters in the late twentieth century began experimenting with new language that simultaneously expanded the reach of these clauses and prompted the courts to devise new interpretive rules. This historical account, while interesting in its own right, also has broader implications. First, it underscores the extent to which contract drafters do not always function as rational actors. In some cases, drafters added language to their clauses that was arguably unnecessary. In others, they declined to add language that would have advanced their interests more effectively. Second, it shows that the pattern of contractual change over time in the context of choice-of-law clauses is different than the pattern observed with respect to other types of contractual provisions. This finding suggests the need for new models of contract innovation

THE ROLE OF THE CISG IN CANADIAN CONTRACT PRACTICE: AN EMPIRICAL STUDY

In much of the legal literature, the fact that the United Nations Convention on Contracts for the International Sale of Goods (CISG) has been ratified by so many nations constitutes incontrovertible evidence of its success. This narrative fails to account, however, for the fact that private parties can choose to exclude the CISG from their international sales contracts. This Article draws upon a hand-collected dataset of contracts executed by public companies in Canada to show that these companies overwhelmingly choose to exclude the CISG from their international sales agreements. It also shows that these same companies are frequently unaware that selecting the law of a Canadian province can result in the application of the CISG and that few (if any) of these companies consciously select the CISG by selecting provincial law. While the Article turns up a few tantalizing hints that attorneys practicing in Quebec may be slightly more receptive to the CISG than attorneys practicing in the rest of Canada, the overall portrait that emerges is of a nation where this treaty is excluded by sophisticated actors in almost all cases. This finding raises important questions of whether the CISG is achieving its intended purpose of facilitating international trade

Cruise Contracts, Public Policy, and Foreign Forum Selection Clauses

A cruise ship contract is the prototypical contract of adhesion. The passenger is presented with the contract on a take-it-or-leave-it basis. If she refuses to sign, the ship sails without her. To ensure that cruise companies do not draft one-sided contracts that are unfair to passengers, Congress has enacted a number of statutes that regulate these agreements. One such statute is 46 U.S.C. § 30509. This law stipulates that any contract provision that limits the liability of the cruise company for personal injury or death is void as against public policy if the ship stops at a U.S. port. In recent years, cruise companies have sought to develop a workaround to this rule for non-U.S. residents. The workaround involves (1) a foreign forum selection clause, and (2) a foreign choice-of-law clause. When a suit is filed against the cruise company in U.S. court, the company will invoke the foreign forum selection clause and ask for the case to be dismissed. When the case is refiled in the foreign court, the cruise company will then argue that the choice-of-law clause compels the application of the Athens Convention, an international treaty that caps the liability of cruise companies in negligence cases. In this way, the companies seek to use forum selection clauses and choice-of-law clauses in tandem to achieve a goal—limiting their tort liability to passengers via contract—that would ordinarily be prohibited by 46 U.S.C. § 30509. This workaround should not work. Indeed, there are dozens of cases where U.S. courts have refused to enforce forum selection clauses in analogous situations. In 2012, however, the U.S. Court of Appeals for the Eleventh Circuit expressly blessed the use of the workaround in cruise ship contracts. This Article first critiques this Eleventh Circuit decision and identifies its many shortcomings. It then draws upon analogous cases from other areas of U.S. law to propose a new analytical framework for evaluating when the courts should and should not enforce foreign forum selection clauses in cruise ship contracts

The Canons of Construction for Choice-of-Law Clauses

Over the past half-century, courts in the United States have developed canons of construction that they use exclusively to construe choice-of-law clauses. These canons are consistently applied by state and federal courts. They play an important role in determining the meaning of choice-of-law clauses and, by extension, the law that will be applied to resolve disputes that come before the courts. To date, however, these canons have attracted relatively little attention in the academic literature. This Article aspires to fill that gap. It develops the first taxonomy of these canons, which fall into one of two families. The first consists of the lexical canons. These canons assign meaning to words and phrases that commonly appear in choice-of-law clauses. The second consists of the canons relating to scope. These canons determine whether the law selected by the parties applies exclusively to contract claims or whether it also applies to related tort and statutory claims. The Article then draws upon interviews and e-mail exchanges with practicing attorneys in an attempt to determine empirically whether these canons generate outcomes that are consistent with the preferences of most contracting parties. It shows that some do and others do not. When a particular canon regularly produces outcomes that are inconsistent with majoritarian preferences, the Article argues that the courts should cast it aside. The Article concludes by addressing how to resolve conflicts among the canons when they arise